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Loren
Loren, Lawyer
Category: Employment Law
Satisfied Customers: 29037
Experience:  More than 30 years in legal practice.
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Legal basis to dismiss a written agreement. Offer letter

Customer Question

legal basis to dismiss a written agreement.
Offer letter states that the employee will be paid a quarterly incentive. This incentive was not tied to performance or business goals. Open ended. Associate was terminated and now is demanding payment. she was terminated due to performance.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Loren replied 1 year ago.

Good morning. I am Loren, a Florida licensed attorney, and I look forward to assisting you today.

Expert:  Loren replied 1 year ago.

Before I answer, a bit more detail would be helpful please.

Expert:  Loren replied 1 year ago.

Was there any amount specified in the offer? Was there any written employment agreement? What was the basis for the incentive?

Customer: replied 1 year ago.
This is a sales person with a quarterly payment of $12,500. the offer letter states she will get this amount. Unfortunately, the prior HR person didn't tie the payment to performance or company's goals. Even though the associate was not performing, she was getting the quarterly payment. She was terminated entering into the 4th quarter therefore, the payment was not made. Now her lawyer is indicating that since this was in the offer letter/written agreement, the company needs to make the payment.
Expert:  Loren replied 1 year ago.

Did the letter make any disclaimer that it did not constitute a written employment contract?

Expert:  Loren replied 1 year ago.

Also, what was the issue leading to the termination?

Customer: replied 1 year ago.
No disclaimer that this didn't constitute a written employment contract, just the at will disclaimer. She didn't sell what she was supposed to so she was terminated due to performance. Email was sent to her indicating that she was not performing up to par.
Expert:  Loren replied 1 year ago.

Your best legal defense to not paying would be that the nonperformance was a breach of contract and that she can not enforce a contract which she herself breached.

Expert:  Loren replied 1 year ago.

It is not the strongest argument, without any specific quantification in the offer, but it may be the best available to you.

Expert:  Loren replied 1 year ago.

Are you still with me?

Customer: replied 1 year ago.
The only item that might be a problem is that the incentive was not tied to any performance goals or budines revenue. I can try this argument but it is along shot.
Customer: replied 1 year ago.
In meeting will send offer lether language so you can see my dilema
Expert:  Loren replied 1 year ago.

I understand the dilemma. It is not a perfect defense, but it may be the best available. If she failed to perform adequately the duties she was hired for then you still argue she was in breach, even without the presence of stated goals.

Expert:  Loren replied 1 year ago.

Did you have further questions before you rate my service to you?